In the throes of a Christmas-time operational meltdown, Southwest Airlines filed for a new trial in a high-profile employee rights case—a decision that makes critics question the airline’s sense of priorities.
The airline claims that a federal judge and jury erred when deciding in favor of a flight attendant, Charlene Carter. After being fired for using social media to express her pro-life views, Carter sued to get her job back. Arguing free-speech violations, Carter won a nationally publicized verdict this summer.
Southwest’s latest filing opposing Carter’s victory landed on Jan. 2 amid one of the most embattled periods in the airline’s 51-year history.
In late December, Southwest canceled more than 16,500 flights. A winter storm overloaded the airline’s outdated computer system and strained its internal processes. Southwest took far longer to recover from the storm than its competitors did.
The company’s epic performance failure inconvenienced millions of people. The airline stands to lose up to $835 million, faces federal investigations, and has been hit with a class-action lawsuit over ticket-refund disputes.
Against that backdrop, critics try to understand why Southwest would continue bothering with Carter’s case. They wonder: Shouldn’t the company focus on fixing problems that contributed to the massive meltdown?
They also think the airline is committing a public-relations blunder by digging in its heels against Carter.
As one employee put it, the case looks like a David-versus-Goliath matchup—pitting a multi-billion-dollar corporation against a lone employee who wants to return to her job.
Some see the Carter case as emblematic of deeper employee-management tensions that now have been laid bare.
The Epoch Times requested comment from attorneys on both sides in Carter’s case but received no reply from those representing Southwest.
In court records, the company insists it has done no wrong to her. Southwest also says it feels justified in its decision to continue fighting against Carter in court. Simultaneously, the airline has taken court-ordered steps to return her to the workforce.
Canary in A Coal Mine
People who have followed Carter’s case liken it to “a canary in a coal mine:” an early warning that internal conditions were turning toxic at Southwest.
The case dates back five years. In hindsight, employees say, that was a few years after they started feeling that the airline was veering away from the employee-friendly principles that propelled Southwest’s success.
The airline’s beloved founder, Herb Kelleher, is credited with laying that foundation. He infused love into “the LUV airline.” Southwest’s stock ticker is LUV because it is based at Dallas Love Field.
Kelleher was famous for his folksy interactions; Carter is among the many employees who remember him fondly.
On Jan. 3, the fourth anniversary of Kelleher’s death, Carter posted a picture of him on Facebook.
“You were the reason I wanted to work for SWA,” Carter wrote, adding that she and others sorely miss him. “I will be forever grateful to have gotten the chance to work for the most amazing boss!”
When Carter was hired in 1996, Kelleher was CEO. After almost two decades in that role, he stepped aside in 2001 after a cancer diagnosis. Kelleher remained chairman until 2008.
In 2017, long after Kelleher’s tenure ended, Southwest fired Carter for using social media to send pro-life messages to her union president.
Some of Carter’s peers insist she would never have faced discipline if Kelleher-style management had remained in force. They say he would not have condoned some tactics that came to light during Carter’s case.
Bigger Than One Employee
Current and former Southwest employees provided their views of Carter’s case on condition of anonymity, fearing repercussions.
Initially, the Carter case was little-known among employee ranks.
More people learned about Carter and the case this summer after the Dallas jury’s verdict attracted national media attention. That ignited more employee interest and spawned a Facebook group focusing on the Carter case transcripts.
And, recently, all of Carter’s peers received court-ordered notifications about the case.
Some now see Carter’s case as a cause celebre. Supporters see her as a standard-bearer for free speech rights that seem to be under constant attack.
They say co-workers have been investigated for even accidentally using “wrong pronouns” for transgender people.
Multiple sources said that the airline is even cracking down on employees for years-old social media posts on topics completely unrelated to the airline business.
Some employees allege that workers with conservative, traditional values seem to be singled out for discipline. At the same time, those considered “diverse”—ethnic minorities or those claiming transgender status—often have been allowed to “skate.”
The company’s “diversity, equity, and inclusion” programs encourage people to express themselves and bring their “authentic selves” to work. But those DEI policies appear to pertain mainly to people in preferred categories, some employees say.
Southwest’s alleged adherence to these so-called “woke policies” was detailed in an extensive Epoch Times report this summer.
The company’s continued pursuit of court action against Carter seems to show “the management disconnect” between Southwest’s upper echelon and its workforce, a former Southwest employee said.
As one worker said, the case’s eventual outcome could affect employees’ morale companywide: “As goes Charlene, so go the employees.”
Policy Versus Law
An April 2022 version of Southwest’s social media policy states that employees can be disciplined or fired for posting anything on social media that might affect the workplace “in any way.”
Incensed by her union’s activities connected to a pro-abortion group, Carter publicly posted videos of aborted fetuses on Facebook. She also sent those to her union president in a private Facebook message.
Then-president Audrey Stone reported Carter to Southwest management.
Deeming Carter’s messages “offensive,” the company fired her. Carter lost her job despite an unblemished record of nearly 21 years.
Carter said she holds intensely personal, religious reasons for opposing abortion.
Federal laws protect American employees’ rights to religious-based expression. In addition, the Railway Labor Act protects union-related speech among U.S. airline employees.
Citing those protections, a nonprofit legal defense foundation filed a federal lawsuit on Carter’s behalf.
Her lawyers obtained emails that revealed stunning interactions between union activists and company managers.
One activist said he promoted “targeted assassinations”—job terminations—of the union’s enemies. Activists would scour “targeted” employees’ social media accounts, looking for possible violations of company policy. Then they would report those posts to management.
Following a trial in mid-2022, jurors found that Southwest and the union, Transport Workers Union of America Local 556, violated Carter’s federally protected rights to express her Christian pro-life beliefs and to criticize the union.
Judge Brantley Starr approved monetary damages approaching $1 million for Carter a month ago. He also ruled that she was entitled to get her job back.
Now Southwest is asking the judge to find fault with his own rulings and grant a retrial in U.S. District Court, Dallas.
Carter’s legal team says such a motion has little chance of prevailing. But, by filing its new-trial motion just before an appeals deadline, Southwest bought more time to file with the U.S. Fifth Circuit Court of Appeals, as threatened, Carter’s attorneys say.
Costs Are Climbing
Southwest denies wrongdoing in Carter’s case.
The airline says it upholds employees’ rights to communicate “in a civil and respectful manner.” Southwest fired Carter after deciding she ran afoul of that standard.
In a Jan. 2 court filing, Southwest asserts that the jury’s decision favoring Carter was based on flawed instructions and insufficient evidence.
Southwest also faults Starr for “unfair management of the trial and other legal errors.”
The airline complains that Starr granted extra time to Carter’s lawyers, “improperly limited Southwest’s communications with its witnesses during trial,” and failed to “adequately explain” his refusal to throw out the case.
Southwest filed its motion for a new trial right before the expiration of a 28-day time limit after Starr specified how the jury’s will would be imposed.
On Dec. 5, the judge granted Carter $600,000 in compensatory and punitive damages, with Southwest and Local 556 each paying half. Those were the maximums the law allows, far below the $5 million that jurors voted to award Carter. They were unaware of the limits.
Starr also ordered Southwest to pay Carter $150,000 in back pay plus another $60,000 or so in prejudgment interest. In a separate order, Starr sanctioned Southwest about $25,000 for failing to help make a witness available.
In mid-December, Carter’s lawyers from the National Right To Work Legal Defense Foundation (NRTW) filed a motion calling for Southwest and Local 556 to absorb costs incurred in Carter’s defense.
That motion seeks about $2.8 million in attorneys’ fees and costs.
The two defendants, Southwest and Local 556, filed court paperwork asking Starr to suspend the monetary portions of his order, pending appeal. The defendants jointly posted a bond of $4.8 million, estimated to be the “upper limit” at stake in the Carter case.
Controversy Erupts Over 17,000 Notices
As ordered, Southwest has taken steps to reinstate Carter. But Carter’s legal team accuses the airline of violating part of Starr’s order—an allegation Southwest denies.
On Dec. 30, NRTW filed a motion asking the judge to hold the airline in contempt of court. NRTW also wants Starr to fine Southwest. But Southwest later countered that it has “fully complied” with the judge’s order.
The controversy leading to the contempt motion began on Dec. 20—just before the winter storm that touched off Southwest’s widespread cancellations.
On that date, Southwest had arranged for Carter to catch a flight from her home in Colorado. The airline summoned her to the company’s Dallas headquarters as a step toward reinstating her.
As Carter was claiming her employee badge, the airline and Local 556 sent notices about Carter’s case to all 17,000 Southwest flight attendants, including Carter.
Starr had ordered those notifications, but Carter didn’t know when they might be sent.
A friend of Carter, who works at the airline, said the notices caught Carter off-guard. So did some of the content. “It was awful,” her friend said. The wording seemed to throw cold water on Carter’s eagerly anticipated return to work.
On NRTW’s advice, Carter, 57, declined to be interviewed for this story.
‘Thumbed Their Nose At the Judge’
While Local 556 wrote a three-sentence notification closely mirroring the language in Starr’s order, Southwest wrote two notices.
One was a short email with court decisions attached. The other was a page-long memo from Southwest’s legal department.
NRTW takes serious issue with much of what the airline said.
Mark Mix, NRTW president, told The Epoch Times: “They were supposed to let everyone else know at Southwest Airlines that they wouldn’t do this type of thing to anyone else. And yet they thumbed their nose at the judge in that case.”
He said the airline, in its notices, failed to own up to “what they did wrong, and the fact that they won’t do it again.”
Instead, Mix said, Southwest essentially told its employees: “We didn’t do anything, but we’ve got to mail you this notice … [and] we object to what Charlene did.”
Southwest told flight attendants that the judge “ordered us to inform you that Southwest does not discriminate against our employees for their religious practices and beliefs.”
NRTW lawyer Matthew Gilliam complained about this wording in a letter to Southwest’s lawyers.
A jury found the airline did discriminate against Carter “for her protected speech about religion and unions,” Gilliam said. But the company’s notices suggest that Southwest “does not and has never engaged in religious discrimination.”
Gilliam called the airline’s message “patently false,” and a misrepresentation of the outcome of Carter’s case.
In addition, the airline’s announcement “violates the court’s injunction against treating Carter differently and less favorably,” Gilliam alleged.
The airline also “disparaged” Carter in the notice, Gilliam said.
Social Media Policy At Issue
The company told employees that Carter’s case involved social media use in a way that created “unnecessary tension” in the workplace and “crossed the boundaries of acceptable behavior.”
Southwest described her posts and messages as “inappropriate, harassing, and offensive.”
The airline said it was “extremely disappointed” in the case’s outcome. However, the company promised to “implement the judgment as we work through the appeal process and await a final ruling.”
In response to the litigation, “We are currently refreshing our social media policy,” Southwest said.
Considering how that policy was used in Carter’s case, “Southwest’s memo chills and restrains employees’ religious beliefs and expression,” Gilliam wrote.
He accused Southwest of declaring itself “the arbiter of what protected conduct the company is willing to permit, as it did with Carter.”
Gilliam also wrote: “The entire communication makes clear that nothing has changed as to Southwest’s enforcement of its social media policies.”
The company concluded its notice by stating: “Each and every employee is valued, and we must work to ensure that everyone is comfortable in their work environment … regardless of our differing opinions. It’s the Southwest way.”
Company ‘Strongly Disagrees’
Gilliam threatened to seek a contempt ruling if the company failed to send out corrected notices within five days of his Dec. 22 letter.
But that deadline hit on Dec. 27, while Southwest was knee-deep in cleaning up its post-Christmas mess. The airline’s lawyers asked for an extra day to respond.
On Dec. 28, attorney Paulo McKeeby responded with a letter stating that the airline “strongly disagrees with the suggestion it has not complied” with Starr’s order.
Southwest “took immediate steps” to follow Starr’s order, McKeeby wrote.
Further, McKeeby said: “The judgment did not say that Southwest had to exactly follow the language used by Judge Starr … Southwest’s notice complied with the spirit and wording of the court’s judgment.”
McKeeby declared that the notices “clearly convey the message that Southwest is not allowed to discriminate or retaliate based on religion, and will not do so in the future.”
Company Tactics Analyzed
Mix, the NRTW president, further analyzed Southwest’s recent court filings.
In its retrial request motion, Southwest, in essence, is asking the judge to admit: “Yeah, everything you said about this case in your final judgment is not true,” Mix said, adding wryly, “Like that’s gonna happen.”
Filing such a motion is a common legal maneuver for losers of civil cases such as Carter’s, Mix said. Doing so “stops the clock from ticking” on the appeal deadline. That gives the losing side more time to prepare its appeal while also taking a long shot at securing a retrial, Mix said.
“It happens all the time; they just kind of throw the kitchen sink at it and say, ‘You know, we deserve a new trial,’” he said.
Southwest is entitled to choose that route. But, considering the airline’s recent operational challenges, Mix said: “It’s kind of interesting that Southwest Airlines wants to go ahead and bring this up again … they’ve had a pretty bad ‘media month,’ if you ask me.”
The airline’s meltdown was so extensive, it seems most people know someone who was affected. Mix said his daughter was among the thousands of stranded passengers.
Ironically, while his daughter was entangled in Southwest’s travel nightmare, Mix’s organization was grappling with the airline in Carter’s court case.
The airline seemingly needs to fortify its ranks and regain its footing after massive cancellations, Mix said. Yet, “they want to have another round of discussion about mistreating one of their employees about something that had nothing to do with the workplace,” he said.
Carter’s quarrel was with the union, not the company. If Southwest “would have just stayed out of it … that would have been a whole different story,” Mix said.
Instead, the company took extra steps to connect Carter’s Facebook posts to Southwest, Mix said.
Southwest dug through Carter’s Facebook photo albums to find years-old pictures of her in uniform. That was enough, the airline said, to make Carter appear to be representing the company when she ranted against abortion.
In her termination notice, the company said: “Charlene, when you posted the graphic [abortion] videos and pictures on Facebook, you were identifiable as a Southwest Airlines employee.” Therefore, the airline said, Carter “represented our company in a manner that is disparaging to Southwest flight attendants as well as to all Southwest employees.”
That’s a stretch, Mix says.
Regardless of the past issues and the continuing court disputes, Mix hopes Carter can return to work and continue her career.
Whatever happens, NRTW “will continue to litigate and protect her rights in the workplace,” he said, adding, “the foundation has been supporting her throughout this five-year legal odyssey.”
Southwest Asserts First Amendment Rights
Meanwhile, on Jan. 6, Southwest filed a response to NRTW’s contempt allegation.
The airline says Starr should deny that motion.
Southwest said its communications to Carter’s co-workers “are consistent with the requirements the court imposed.”
Based on other court cases, proving contempt of court requires “clear and convincing evidence” of a violation committed willfully or in bad faith, Southwest said.
NRTW lacks the necessary proof, Southwest said. The company argues that its actions have shown it “substantially complied with this court’s order and acted in good faith.”
Besides making the required notifications, Southwest has scheduled Carter for training at the end of this month.
Southwest criticized NRTW for quibbling over the wording in the court-ordered notices.
“Carter complains about the phrase ‘does not discriminate,’ rather than ‘may not discriminate’ in the email notice. That complaint is unwarranted,” Southwest’s lawyers wrote.
Because the jury’s verdict and Starr’s judgment were attached to that email, it was clear that “Southwest was found to have violated Carter’s rights,” the airline said.
And, putting the cherry on top of a controversy that has revolved around free speech, Southwest asserts its right to freely express its opinions. The airline declared: “Carter’s theory of contempt violates Southwest’s First Amendment right to speech.”